Jones Estate (Re), 2017 NSSC 300

Counsel: Joseph Roza for the Applicant No one appearing for the Respondents SUPREME COURT OF NOVA SCOTIA Citation: Jones Estate (Re), 2017 NSSC 300 Date: 20171114 Docket: Hfx. No. 468829 Probate File No.: H-62625 Registry: Halifax In the Estate of Dorothy Gwendolyn Jones, Deceased Application to determine if handwritten dispositions of the deceased are testamentary and admissible to probate pursuant to ss. 6 and 8A of the Wills Act, R.S.N.S. c. 189 Gary R.

Armsworthy, Personal Representative of the Estate of Dorothy Gwendolyn Jones, deceased Applicant and Autism Nova Scotia, Canadian Cancer Society, Nova Scotia Division, Heart & Stroke Foundation of Canada (Nova Scotia Division), Society for the Prevention of Cruelty to Animals, The Salvation Army of Canada, Halifax Division and Feed Nova Scotia, named beneficiaries under the Last Will and Testament of Dorothy Gwendolyn Jones Respondents Decision Judge: The Honourable Justice Robert W.

Wright Heard: November 14, 2017 in Halifax, Nova Scotia Oral Decision: Written Decision: November 14, 2017 December 8, 2017 Wright, J (orally) [ 1 ] The deceased, Dorothy Gwendolyn Jones, passed away in Halifax on September 1, 2015 at the age of 92. By her Last Will and Testament executed on June 2, 2009, she appointed her solicitor Gary Armsworthy as her personal representative, also naming Ross Hallett as alternate personal representative if Mr. Armsworthy was unable to act in that capacity. Ms. Jones was predeceased by her husband. [ 2 ] On October 1, 2015 a Grant of Probate was made to Mr.

Armsworthy who then undertook his duties as personal representative of the Estate. [ 3 ] Mr. Armsworthy subsequently found four handwritten memos among the deceased’s personal effects, which are now in evidence as exhibits. According to Mr. Armsworthy’s affidavit, Exhibits 1 and 2 were found in her residence. Exhibits 3 and 4 were found in her safety deposit box at T.D. Bank where her original Last Will and Testament was also reposited. [ 4 ] None of these memos were signed or witnessed in compliance with the formal execution requirements set out in s.6 of the Wills Act .

They were obviously self-made without the involvement of legal counsel. [ 5 ] On the direction of the Registrar of Probate, Mr. Armsworthy has now brought this application to determine if these handwritten memos are testamentary instruments and admissible to probate pursuant to s. 8A of the Wills Act . [ 6 ]

Section 8A, which came into force in 2008, reads as follows: Where the court of competent jurisdiction is satisfied that a writing embodies (

a) The testamentary intentions of the deceased; or (

b) The intention of the deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will, the court may, notwithstanding that the writing was not executed in compliance with the formal requirements imposed by this Act, order that the writing is valid and fully effective as if it had been executed in compliance with the formal requirements imposed by this Act. 2006, c. 49, s.2 . [ 7 ] The position advanced by Mr.

Roza on behalf of the Estate is that memos 1 and 2 are not testatmentary dispositions and should not be admitted to probate but that memos 3 and 4 are testamentary dispositions and should be admitted to probate, with an amended Grant

of Probate to follow. This position is supported by legal counsel for the Salvation Army, which was the only beneficiary heard from. [8] I agree with the proposed outcome for the reasons that follow. [9] As Mr. Roza points out, memos 1 and 2 were both written prior to Ms. Jones’ Last Will and Testament and simply containdirections for her funeral visitation, cremation and burial. They do not contain any testamentary dispositions whatsoever and therefore neednot be admitted to probate. [10] Memos 3 and 4, however, do contain testamentary dispositions.

Memo 3 is dated June, 2009 (obviously made subsequent to the Will executed on June 2nd because reference is made to the Will in that memo). Memo 4 is dated December 29, 2012. [11] The disposition of the deceased’s assets contained in the original Will itself begins with five cash bequests. The first fourbequests were made to sons and a daughter of the deceased’s niece and nephew respectively in the amount of $2000 each. The fifth cashbequest was made to St. George Anglican Church in MacAdam, New Brunswick in the amount of $10,000.

Beyond those requests, theresidue of the Estate was directed to be divided in specified shares to the six charities named in the style of cause of this proceeding. [12] It should also be noted that the total value of the Estate is listed in the Inventory as being approximately $6.7 million dollarswhich is mostly comprised of market investments. [13] Clause 4 of the Will has a significant bearing on this application.

It directs the personal representative to “distribute any items of apersonal nature, as I have directed in any written list attached to or with my Will”. [14] The changes later made in both memos 3 and 4 were all by way of additional bequests of cash and personal property items. Noneof these contracted or revoked any bequests in the original Will (except of course to the extent of the minor impact on the residual bequeststo the charities). [15] The changes can be summarized as follows: 1.

Memo 3 alters the cash bequests to the sons and daughter of the deceased’s niece and nephew by increasing them from $2000to $2500. It also adds two new cash bequests to named individuals in the same amount of $2500 each. The memo goes on to reaffirm allcharitable donations as listed in the Will and then sets out the deceased’s wishes as to how various articles of personal effects (includingpaintings, jewellery, ornaments and other household items) are to be distributed to a number of named individuals. 2.

Memo 4 adds two new cash bequests, one to another individual in the amount of $1500 and one to the V.O.N. in the amount of$10,000.

That is followed by a further list of personal items to be distributed to various named individuals which the deceased described asan “additional list” to the first list kept in her safety deposit box at the TD Bank. [16] The total amount of these additional cash bequests in both memos 3 and 4 combined is $18,500 which represents approximately ¼of 1% of the total estate assets. [17] That completes the factual background to this application and I now turn to the established legal principles to be applied indetermining whether memos 3 and 4 are testamentary in nature and admissible to probate. [18] Although I have been referred to a number of cases in Mr.

Roza’s brief, I need refer to only one of them for purposes of thisdecision, which nicely sets out the applicable law after canvassing various other legal authorities.

That case is cited as Re Peters Estate2015 NSSC 292, a decision made by Justice Duncan in similar circumstances to those here. [19] Justice Duncan focused on the need to carefully examine the instruments before the Court to ascertain the true intention of thedeceased and whether those instruments do in fact represent the true and final wishes of the deceased for the disposition of her propertyupon death, notwithstanding that there has been imperfect compliance with the formalities of execution under the Wills Act. [20] Justice Duncan put it this way (beginning at para. 18): 18.

The question to be posed is taken from the well-known case of (Re) Gray Estate (SCC), [1958] S.C.R. 392, at page396 and that is whether the note contains (and this is the operative language) "a deliberate or fixed and final expression of intention as to thedisposal of property upon death." An alternate way of saying this is: does the note demonstrate testamentary intention or animus testandi?Evidence can be extrinsic evidence and/or found in the contents of the paper itself. 19.

In looking at the cases that deal with determining the intent, a number of factors have been looked at, and these are not intended to bean all-inclusive list, but these are some of the things that one sees in looking at other cases where judges have had to consider thesequestions: What is the degree of the formality of the language in the document? Is it dated? Is it signed? Has it been sealed? Was it delivered to a person, a specific person, with or without instructions as to what to do with it?

Were there are any statements made by the testatrix, either at the time of delivery, or in the document itself that speak to the anticipation ofdeath; that the document was intended to reflect a disposition after death? Is there any indicia of when it was expected that the document would read?

The certainty of the bequests set out in the document. Whether there are reasons offered for gifting as set out in the document. Whether there is a reference to an existing Will that might tie it back to a Will. How permanent was the document intended to be - was it written in ink, or in pencil? i.e., Was this just a penciled thought for erasing later or not? (You have heard me in my preliminary comments about looking at the originals today and noting that there are some deletions in Note 3 that I will speak to a little bit later.

Having the original document here allows me to better assess that type of issue.) Whether the document was on a form or is it entirely, as in these notes, in the handwriting of the testatrix. So these are but a few factors the courts have looked at. I will consider as well what I see in the individual documents . . . . 21. Overall, as is indicated in the case law, the question is what is the intention of...can we glean the intention of the deceased person?

That is really the sole guide and control for making the determination that I have to make today. [ 21 ] Justice Duncan went on to say (at para. 23) that the burden is on the Applicant to satisfy the court, on the balance of probabilities, that the specified document embodies the testamentary intention of the deceased. [ 22 ] In adopting the various factors identified in Peters , I make the following observations about the contents and surrounding circumstances in memos 3 and 4 with a view to ascertaining whether they represent a deliberate or fixed and final expression of intention as to the disposal of the specified property upon death. [ 23 ] In first examining memo 3, it is to be noted that the instrument is captioned “Bequest on my death – persons named are to be living”.

This language reflects an intention to make a testamentary disposition of property upon death.

Also, this instrument was made subsequent to the execution of the original Will and indeed was contemplated being made under Clause 4 of that Will, at least in part. [ 24 ] It is to be further noted that this memo is addressed to the personal representative of the estate (and to the alternate named in the Will) which further indicates a testamentary intention. [ 25 ] The note also affirms the charitable donations listed in the Will which also indicates a testamentary intention by tying the instrument to the Will. [ 26 ] Significantly, memo 3 was found in the deceased’s safety deposit box along with the original Will itself.

This is an indication that the memo was intended to accompany the Will as a testamentary instrument. I again make reference to the wording of Clause 4 of the Will which directed the personal representative to distribute any items of a personal nature as directed in any written list attached to or with my Will . [ 27 ] Although there is no direct evidence proving that memos 3 and 4 were in the handwriting of the deceased, it is to be inferred from the circumstantial evidence surrounding these memos, and where they were found, that it was in fact the deceased who handwrote these two memos.

That is reinforced by the fact that memo 4 was found inside an envelope bearing the deceased’s signature which strongly resembles the signature contained in the Will itself. [ 28 ] Indeed, it is evident from the contents of memo 4 that both memos were intended to be treated the same way. Memo 4 is captioned as an “additional list” after making reference to the “1 st List = T.D. Bank (S. Deposit) Bayers Rd., Hfx. N.S.” Captioned at the very beginning of the document are the words “Bequest” = Death. [ 29 ] Again, memo 4 is addressed to Gary Armsworthy who is the personal representative of the estate.

The direction to him of distributing various personal effects specified to various beneficiaries is also contemplated under Clause 4 of the Will in the same manner as is memo 3. [ 30 ] It should also be noted that memo 4 was contained in an envelope captioned “Death Request” under which appears the deceased’s signature. It bears repeating that memo 4 was also found in the safety deposit box and indeed references that same safety deposit box at the TD Bank where the original Will was also reposited.

As with memo 3, this is an indication that memo 4 was intended to accompany the Will as a testamentary instrument. [ 31 ] Again, there are no revocations of any sort contained in memo 4 , nor in memo 3. Rather, these memos simply contain additional bequests which are relatively minor compared to the total value of the estate. These new bequests are set out with certainty and were obviously made in contemplation of death. [ 32 ] All of the foregoing factors are highly indicative of a testamentary intention to add these further bequests contained in memos 3 and 4 to those contained in the original Will.

I am satisfied that the Applicant has met the burden of proving, on the balance of probabilities, that both memos were handwritten by the deceased and that they embody a fixed and final expression of intention to include these added bequests in the disposition of her property upon death. [ 33 ] I should add that I initially shared the same concern as Justice Duncan had in Peters in considering the additional bequests of cash specified in the two memos, which would not be typically thought of as items of a personal nature, as contemplated under Clause 4 of the Will.

However, I have reached the same ultimate conclusion on the facts of this case that these were intended as additional bequests to be made upon death and where they are interspersed in the lists of personal items to be distributed, which is clearly in my view a testamentary disposition, I am here satisfied as well that memos 3 and 4 should be treated as being valid testamentary dispositions in their entirety. [ 34 ] Accordingly, I am prepared to issue an order that memos 3 and 4 (but not memos 1 or 2) are testamentary dispositions made by the deceased and should be admitted to Probate, with an amended Grant of Probate to follow.

J.